I. BACKGROUND

Howard Jarvis and the Water District have litigated repeatedly. Some of the cases

originated as lawsuits filed by Randall Roberts where Howard Jarvis later substituted in

as the plaintiff. Howard Jarvis initiated others. We recently decided two appeals

between these parties. In one, we held that the validation statutes (Code Civ. Proc.,

§§ 860-870) applied to the Water District’s ad valorem property tax. (Coachella Valley

Water District v. Superior Court of Riverside County (2021) 61 Cal.App.5th 755

(Coachella I).) In the other, we held that the Water District’s interfund loan did not

violate Propositions 26 and 218. (Howard Jarvis Taxpayers Association v. Coachella

Valley Water District (Feb. 10, 2023, E078411) [nonpub. opn.] (Coachella II).) In other

active appeals before us, we will consider whether the Water District’s canal rates and 1 groundwater assessment charge violate Propositions 26 and 218. But this appeal

involves pretrial orders in the groundwater assessment charge case against the Water

District, and although the several other defendants in the case are parties to this appeal,

the Water District is not.

The Water District is a public agency responsible for supplying water to the

Coachella Valley. Its main source of potable water is the groundwater in the Coachella

1 On our own motion, we take judicial notice of the appellate record in Coachella I, Coachella II, and the active appeals between the parties before us. (Evid. Code, §§ 452, subd. (d), 459.)

3 Valley aquifer. For decades, the aquifer’s groundwater levels declined from overdraft, so

the Water District now manages the aquifer by spreading or injecting water from other

sources into the aquifer. This process is partially funded by replenishment assessment

charges (replenishment charges), which Water Code section 31630 gives the Water

District the authority to impose. (See also Wat. Code, § 31630.5, subd. (g)

[“Replenishment” also includes “incentive programs encouraging producers to use

reclaimed water . . . instead of groundwater”].) The Water District divides its service

area into three areas of benefit: the East Whitewater River Subbasin area, the West

Whitewater River Subbasin area, and the Mission Creek Subbasin area. Each area is

subject to its own replenishment charge. (Wat. Code, § 31633; see also Coachella II,

supra, E078411 [describing Water District’s groundwater management].)

In November 2019, Roberts filed a combined petition and putative class action

complaint against the Water District; three of its five board members (John Powell Jr.,

Peter Nelson, and Anthony Bianco); its general manager (James Barrett); and three

consulting firms (MWH Global Inc., Hawksley Consulting, Inc., and Stantec Consulting,

Inc.). It alleged that the replenishment charges unconstitutionally violate Propositions 26

and 218, and that the defendants have “perpetually forc[ed] property taxpayers, domestic

ratepayers, and those paying [replenishment charges] in the West to subsidize the

interests of large agricultural property owners in the East Coachella Valley, including

Board members Powell, Nelson and Bianco.” According to the pleading, in 2017, the

replenishment charge for the East Whitewater River Basin area was $66 per acre-foot,

4 whereas the replenishment charges for the West Whitewater River Subbasin area and

Mission Creek Subbasin area were $143.80 per acre-foot and $135.53 per acre-foot,

respectively. The pleading alleges that, as a result of the low replenishment charge for

the East Whitewater River Basin area, “Big Ag businesses in the East (including those

owned by . . . Powell, Nelson and Bianco) enjoy artificially ‘cheap’ groundwater and, in

turn, reap incredible profits.” The low replenishment charge for that area was justified by

the consultants’ cost-of-service study, “which deliberately fabricated a fictional basis for

the discriminatory” rates.

The petition and complaint alleged nine causes of action: (1) writ of mandate

(against the Water District, the three board members, and the general manager);

(2) violation of the California Constitution (against the Water District); (3) violation of

the United States Constitution (against the Water District); (4) violation of the Water

Code (against the Water District); (5) conversion (against the Water District, the three

board members, and the general manager); (6) aiding and abetting tortious conduct and

statutory violations (against the consultants); (7) civil conspiracy to commit tortious

conduct and statutory violations (against all defendants); (8) violation of the Unfair

Competition Law (UCL, Bus. & Prof. Code, § 17200 et seq.) (against the consultants);

and (9) declaratory relief (against all defendants).

All the defendants demurred on all causes of action, and all defendants except the

Water District filed an anti-SLAPP motion under Code of Civil Procedure section 425.16

5 2 (section 425.16). Before those motions could be decided, Roberts filed a first amended

petition and complaint, which contained the same causes of action against the same

defendants. Again, all defendants demurred, and all defendants except the Water District 3 filed an anti-SLAPP motion. The demurrer before us was not the one filed on the first

amended petition and complaint, but the anti-SLAPP before us was. The demurrer before

us, we explain below, was filed as to a third amended petition and complaint.

A. The Anti-SLAPP Motion

The anti-SLAPP defendants—all defendants except the Water District—moved to

strike the writ of mandate, conversion, aiding and abetting, civil conspiracy, UCL, and

declaratory relief causes of action against them on the grounds that those claims arose

from their protected activity. The motion focused on three activities alleged. The first

was the board members’ vote to set the replenishment charges. The second was the

general manager’s discussion of the cost-of-service study with board members. And the

third was the consultants’ preparation of a cost-of-service study that the board relied on in

setting the replenishment charges. The motion also claimed the causes of action based on

these activities failed on the merits: not only were the board members and general

manager immune from suit under the Government Tort Claims Act (Gov. Code, § 810 et

2 “SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) 3 Amending a complaint normally does not prevent a then-pending anti-SLAPP motion to be heard (Dickinson v Cosby (2017) 17 Cal.App.5th 655, 679), but the anti- SLAPP motion was refiled under a general order by the Riverside County Superior Court for the COVID-19 pandemic. (General Order No. 2020-15, Apr. 22, 2020.)

6 seq.), but the preparation of the cost-of-service study was also privileged under Civil

Code section 47, subdivision (b).

Roberts’ opposition claimed his lawsuit was exempt from the anti-SLAPP statute

under the public interest exemption, contained in Code of Civil Procedure section 425.17

(section 425.17), subdivision (b), which we analyze below. The trial court agreed with

Roberts that the exemption applied and denied the motion. Because the denial relied on

the exemption, the anti-SLAPP defendants could not immediately appeal the ruling.

(§ 425.17, subd. (e).) The anti-SLAPP defendants sought a writ of mandate to overturn

the ruling, which we summarily denied.

B. The Demurrer

On the same day the trial court denied the anti-SLAPP motion, it also sustained

the defendants’ demurrer as to all causes of action on the first amended petition and

complaint. The demurrer as to the conversion, aiding and abetting, and civil conspiracy

causes of action were sustained without leave to amend, while Roberts was given leave to

amend the remaining causes of action.

A second amended petition and complaint alleged five causes of action: (1) writ

of mandate (against the Water District, the three board members, and the general

manager); (2) violation of the California Constitution (against the Water District);

(3) violation of the United States Constitution (against the Water District); (4) violation

of the UCL (against the consultants); and (5) declaratory relief (against all defendants).

7 The cause of action for violating the Water Code was eliminated, although the demurrer

as to that cause of action had been sustained with leave to amend.

The defendants again demurred to all causes of action. They argued, as earlier,

that the replenishment charges were subject to the validation statutes, so, because Roberts

did not timely sue in validation, the suit was time-barred as to any replenishment charge

adopted more than 60 days before filing of the original petition and complaint. (See

Code Civ. Proc., § 863.) The defendants raised other grounds, but the trial court agreed

the suit was time-barred and sustained the entire demurrer on that ground. The trial court

stated orally that timeliness under the validation statutes was the reason the demurrer was

sustained earlier, and without any new facts showing the suit to be timely, this time the

entire demurrer was sustained without leave to amend.

No judgment was entered when the demurrer was sustained without leave to

amend in December 2020. This was because in August 2020, Roberts had filed a

validation action challenging the replenishment charges the Water District approved for

the 2021 fiscal year, and that ongoing case (the 2021 Reverse Validation Action) had

been consolidated with this one. The trial court declined to sever the cases to enter

judgment in this case.

Several months later, Howard Jarvis substituted in as lead plaintiff for Roberts.

The trial court allowed a third amended petition and complaint to be filed in this case, per

the parties’ stipulation, solely to substitute Howard Jarvis for Roberts as the putative lead

plaintiff. Plaintiff’s counsel remained the same. The parties also stipulated that the

8 demurrer to the second amended petition and complaint would be treated as the demurrer

to the third amended petition and complaint and deemed sustained without leave to

amend as explained in the trial court’s earlier ruling.

C. The Anti-SLAPP Fees Motion

Howard Jarvis moved for fees incurred in opposing the anti-SLAPP motion. It

claimed the anti-SLAPP motion was frivolous or solely intended to cause unnecessary

delay, thus warranting an award against the anti-SLAPP defendants. (See Code Civ.

Proc., § 425.16 (§ 425.16), subd. (c)(1).) The trial court agreed, awarding $177,774.30 in

attorneys’ fees and $2,992.20 in costs jointly and severally against the anti-SLAPP

defendants and their counsel.

D. The Appeal

The fee award was immediately appealable because it was for more than $5,000

(see Code Civ. Proc., § 904.1, subd. (a)(12)), and the anti-SLAPP defendants and their

counsel appealed. The award’s propriety could depend on the anti-SLAPP motion’s

merit, because a meritorious motion is not frivolous or solely intended to cause

unnecessary delay. However, the anti-SLAPP ruling was appealable only from judgment,

which had not been entered because the 2021 Reverse Validation Action (and validation

actions challenging replenishment charges for later fiscal years that had since been filed

and consolidated) had not been resolved. So a few months after the fee ruling, the anti-

SLAPP defendants moved again for an order severing this case.

9 During those few months between the fees ruling and the severance motion,

however, Judge Sykes, assigned to the consolidated cases, had left the court, and the

cases had been reassigned to Judge Riemer. In August 2022, apparently at Judge

Riemer’s suggestion, Howard Jarvis dismissed the anti-SLAPP defendants, so Judge

Riemer denied the severance motion. Both sides then appealed the judgment of

dismissal, with the anti-SLAPP defendants challenging the anti-SLAPP motion and

Howard Jarvis challenging the demurrer ruling. We consolidated those appeals with the

one pending on the anti-SLAPP fees motion.

II. DISCUSSION

We will begin with the anti-SLAPP motion and the motion granting attorney fees.

We hold that the trial court erred in finding that the public interest exemption protected

the first amended petition and complaint from an anti-SLAPP challenge. We then find

that, with two exceptions, the anti-SLAPP defendants satisfactorily demonstrated that the

causes of action alleged against them arose from protected activity, and that Howard

Jarvis has failed to demonstrate that those causes of action have minimal merit. As a

result, the anti-SLAPP motion should have been granted in large part, and the fees award

was in error. Turning then to the demurrer, we find that because the causes of action

alleged against the anti-SLAPP defendants in the third amended petition and complaint

should have, with one exception, been dismissed as part of the anti-SLAPP motion, the

cross-appeal on the demurrer is largely moot. As to the sole cause of action still at issue,

however, we hold that the demurrer was properly sustained.

10 A. The Anti-SLAPP Motion

1. The Public Interest Exemption

In 1992, the Legislature enacted section 425.16, the anti-SLAPP statute, to allow

for early dismissal of unmeritorious claims filed “to interfere with the valid exercise of

the constitutional rights of freedom of speech and petition for the redress of grievances.”

(Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315 (Club

Members).) The Legislature authorized the filing of a special motion to strike such

claims, and it provided that section 425.16 should “‘be construed broadly.’” (Club

Members, supra, at p. 315.)

“In 2003, the Legislature enacted section 425.17 to curb the ‘disturbing abuse’ of

the anti-SLAPP statute.” (Club Members, supra, 45 Cal.4th at p. 316, citing Code Civ.

Proc., § 425.17, subd. (a).) Section 425.17 contains two exemptions, one for public

interest lawsuits (§ 425.17, subd. (b)) and the other for commercial speech (§ 425.17,

subd. (c)). Satisfying an exemption means the complaint “may not be attacked under the

anti-SLAPP statute.” (Club Members, supra, at p. 316.)

An action may qualify for the public interest exemption if three requirements are

met. The first is that the plaintiff may not “seek any relief greater than or different from

the relief sought for the general public or a class of which the plaintiff is a member,”

disregarding attorneys’ fees, costs, and penalties for this purpose. (§ 425.17, subd.

(b)(1).) The second is that “[t]he action, if successful, would enforce an important right

affecting the public interest, and would confer a significant benefit, whether pecuniary or

11 nonpecuniary, on the general public or a large class of persons.” (§ 425.17, subd. (b)(2).)

And the third is that “[p]rivate enforcement [must be] necessary and place[] a

disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the

matter.” (§ 425.17, subd. (b)(3).)

Additionally, to qualify for the public interest exemption, the “action, as opposed

to a cause of action, must be brought solely in the public interest.” (Club Members,

supra, 45 Cal.4th at pp. 319-320; § 425.17, subd. (b).) If any portion of the lawsuit

contravenes section 425.17, subdivision (b), then the public interest exemption does not 4 apply at all. We address de novo whether an action falls under the public interest

exemption before considering whether section 425.16 applies. (Save Westwood Village v.

Luskin (2014) 233 Cal.App.4th 135, 143.)

The public interest exemption does not apply here, as the public interest is not

advanced when individual members of an official government body are sued for relief

only the government body can provide. Our focus is on the writ of mandate and

conversion causes of action. The plaintiff seeks a writ of mandate to direct the

defendants to stop collecting unlawful replenishment charges, vacate all resolutions

unlawfully imposing replenishment charges, and return all amounts collected as unlawful

4 By contrast, the commercial speech exemption can apply to some causes of action in a lawsuit but not others. (§ 425.17, subd. (c); see Club Members, supra, 45 Cal.4th at p. 320 [“The Legislature clearly distinguished between an ‘action’ and a ‘cause of action’ in drafting subdivisions (b) and (c) of section 425.17, and treated them differently”].)

12 replenishment charges. The conversion cause of action seeks a return of the same

amounts. But all these are acts only the Water District can perform, not any individual 5 board members or its general manager. The first amended petition and complaint seeks

to stop collection of unlawful replenishment charges, but replenishment charge payments

are made to the Water District, not to the general manager. (Wat. Code, § 31635 [“Any

replenishment assessment levied pursuant to this chapter shall be due and payable to the

district . . . .”].) It asks for the resolutions about the replenishment charges to be vacated,

but only the Water District’s board can do that, not individual board members. (Wat.

Code, § 30525 [“No ordinance, resolution, or motion shall be passed or become effective

without the affirmative votes of at least a majority of the members of the board”].) And it

prays for a return of the money paid as replenishment charges, but that money is in the

Water District’s bank accounts, not the general manager’s. There is a “distinction

between action taken by a government body and the expressive conduct of individual

representatives.” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 425 (Montebello);

see Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 599 [noting

“distinction between, on the one hand, claims seeking to impose liability against a

governmental entity, and, on the other, claims seeking to impose liability for the

expressive activity of officials through whom a government entity must act”].)

5 The plaintiff also seeks a writ of mandate to require the Water District, board members, and general manager to “comply with the mandatory duties under the California Constitution . . . and other applicable laws,” but a writ of mandate will not issue to grant the same relief already provided by other laws. (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 596.)

13 The inclusion of the board members and the general manager as defendants in

these causes of action is gratuitous. Its only effect is to expose those individuals to the

potential costs of having to provide for their own defense as well as the threat of personal

liability. (Gov. Code, §§ 995, 995.2, 825, 825.6.) That risk, even if small, is enough to

have a chilling effect. “Just as SLAPPs filed against individuals have a ‘chilling’ effect

on their participation in government decision making, SLAPPs filed against public

officials, who often serve for little or no compensation, may likely have a similarly

‘chilling’ effect on their willingness to participate in governmental processes.” (Sills,

SLAPPS: How Can the Legal System Eliminate Their Appeal? (1993) 25 Conn. L.Rev.

547, 550 cited in Montebello, supra, 1 Cal.5th at p. 426.)

Had the writ of mandate and conversion causes of action been against only the

Water Board, the exemption would have applied. The anti-SLAPP defendants do not

dispute that the requirements in section 425.17, subdivisions (b)(1) and (b)(2) were met.

As to subdivision (b)(3)—“Private enforcement is necessary and places a

disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the

matter”—the anti-SLAPP defendants correctly claim that it was not “necessary” for them

to be sued. Nevertheless, subdivision (b)(3) was met here, as it is satisfied when no

public entity has enforced the right that the plaintiff seeks to vindicate. (See, e.g., The

Inland Oversight Committee v. County of San Bernardino (2015) 239 Cal.App.4th 671,

676; Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1464; People ex rel.

Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 504; cf.

14 Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217 [construing private attorney

general statute; “only the availability of public enforcement” “affect[s] the necessity of

private enforcement”], italics removed.) But along with the requirements listed in

subdivisions (b)(1), (b)(2), and (b)(3), the public interest exemption requires that the

entire action be brought solely in the public interest. (§ 425.17; Club Members, supra, 45

Cal.4th at pp. 319-320.) As the writ of mandate and conversion causes of action are pled

beyond the Water Board itself, the action is not brought solely in the public interest.

Arguing otherwise, Howard Jarvis states the lawsuit “seeks to rectify critical

issues concerning governmental abuses of power, conflicts of interest, public fraud,

manipulation of water rates, constitutional violations, and environmental concerns about

large agricultural companies depleting the Coachella Valley’s supply of potable drinking

water.” There is no serious dispute that other causes of action alleged in the first

amended petition and complaint seek to promote the public interest on these issues. But

claims asserted against individual defendants for actions only the government body

undertook do not advance the public interest. If we ignored the lack of public benefit in

suing the individual defendants on the writ of mandate cause of action, we would be

applying a “principal thrust or gravamen” test to determine whether the exemption

applies, an approach our Supreme Court has rejected. (Club Members, supra, 45 Cal.4th

at pp. 319-320 [Court of Appeal “incorrectly concluded” that “principal thrust or

gravamen” test governs under § 425.17, subd. (b)].) The trial court accordingly erred

when it found that the action fell under the public interest exemption.

15 Howard Jarvis contends that, should we decide the public interest exemption does

not apply, we should remand the matter to the trial court to decide the anti-SLAPP

motion in the first instance. Remand, however, makes little sense under the

circumstances. In the four years since the anti-SLAPP motion was first filed, the case has

progressed to trial and appellate review, so the case is nowhere near the early stage of

litigation that anti-SLAPP motions were designed for. Furthermore, “[w]hether section

425.16 applies and whether the plaintiff has shown a probability of prevailing are both

reviewed independently on appeal.” (ComputerXpress, Inc. v. Jackson (2001) 93

Cal.App.4th 993, 999.) Further still, the anti-SLAPP defendants inform us that Judge

Riemer has since left the bench, so upon remand a third judge would need to become

familiarized with these cases to rule on the anti-SLAPP motion, causing additional delay.

Rather than remanding, we address whether the motion should have been granted below.

2. Step One: Protected Activity

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant

must establish that the challenged claim arises from activity protected by section 425.16.”

(Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) “A claim arises from protected

activity when that activity underlies or forms the basis for the claim.” (Park v. Board of

Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) The speech or

petitioning activity itself must be “the wrong complained of.” (Id. at p. 1060.)

“Allegations of protected activity that merely provide context, without supporting a claim

for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, supra, at p. 394.)

16 “The defendant’s burden is to identify what acts each challenged claim rests on and to

show how those acts are protected under a statutorily defined category of protected

activity.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)

Section 425.16 identifies four categories of protected activity, two of which matter

here. Section 425.16, subdivision (e)(1) protects “any written or oral statement or writing

made before a legislative, executive, or judicial proceeding, or any other official

proceeding authorized by law.” Section 425.16, subdivision (e)(2) protects “any written

or oral statement or writing made in connection with an issue under consideration or

review by a legislative, executive, or judicial body, or any other official proceeding

authorized by law.”

The anti-SLAPP motion adequately identifies two protected activities that gave

rise to alleged liability. First, the board members’ vote to set the replenishment charges

fell under section 425.16, subdivision (e)(1) (Montebello, supra, 1 Cal.5th at p. 422), and

it formed the basis for several causes of action, including the writ of mandate cause of

action against them and the declaratory relief cause of action against all the anti-SLAPP

defendants. Those two causes of action allege harm from the enactment of the

replenishment charges, which directly resulted from the board members’ vote. The board

members’ vote also forms the basis for the civil conspiracy cause of action against all the

anti-SLAPP defendants and the aiding and abetting cause of action against the

consultants. For those claims, the voting was the target act—the wrongful act and goal of

the conspiracy that the consultants aided and abetted. (See Spencer v. Mowat (2020) 46

17 Cal.App.5th 1024, 1037 [“When liability is asserted for the target act of a conspiracy,

[any] preliminary speech or petitioning activity is simply evidence of the defendant’s

liability, not ‘the wrong complained of’”].)

The second protected activity was the consultants’ preparation of their cost-of-

service study, which constituted a writing falling under section 425.16, subdivision

(e)(2). Because it was, according to the allegations of the first amended petition and

complaint, a fraudulent business act that the UCL proscribes, the preparation of the cost-

of-service study formed the basis for the UCL violation cause of action against the

consultants.

Not all causes of action alleged against the anti-SLAPP defendants arose from

protected activity. The anti-SLAPP defendants have not identified a protected activity

underlying the conversion cause of action. The first amended petition and complaint

bases this cause of action on only the “taking [of] certain monies (in an amount

ascertainable from [the Water District’s] records) through unlawful” replenishment

charges. Nothing suggests that such an action falls under any category of protected

activity in section 425.16, subdivision (e).

As well, not all of the protected activities the anti-SLAPP defendants identify

formed the basis for any cause of action against them. The general manager’s discussion

of the cost-of-service study with the board members qualifies as a “written or oral

statement or writing made in connection with an issue under consideration” (§ 425.16,

subd. (e)(2)), but the writ of mandate cause of action against the general manager is not

18 based on those discussions. Rather, it is based on the general manager’s collection and

enforcement of the replenishment charges, although it is the Water District that formally

undertakes those actions, not the general manager as an individual.

3. Step Two: Probability of Success on the Merits

If a defendant makes its required showing in the first step, “the burden shifts to the

plaintiff to demonstrate the merit of the claim by establishing a probability of success.”

(Baral, supra, 1 Cal.5th at p. 384.) In evaluating the second step, the court “accepts the

plaintiff’s evidence as true” and “evaluates the defendant’s showing only to determine if

it defeats the plaintiff’s claim as a matter of law.” (Id. at p. 385.) To establish a

probability of prevailing on the claim, a plaintiff “‘must “‘state[] and substantiate[] a

legally sufficient claim.’” [Citations.] Put another way, the plaintiff “must demonstrate

that the complaint is both legally sufficient and supported by a prima facie showing of

facts to sustain a favorable judgment if the evidence submitted by the plaintiff is

credited.”’” (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714; see Varian Medical

Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 [analysis is “summary-judgment-

like”].)

Howard Jarvis has not shown a probability of success on any of the implicated

causes of action. Those causes of action, to reiterate, are (1) the writ of mandate against

the Water District’s board members (but not the general manager); (2) civil conspiracy

against all the anti-SLAPP defendants; (3) aiding and abetting against the consultants;

19 (4) the UCL violation against the consultants; and (5) declaratory relief against all the

anti-SLAPP defendants.

First, the writ of mandate cause of action fails as a matter of law because, as

discussed above, no such writ relief would properly extend to the board members. (See

also Montebello, supra, 1 Cal.5th at p. 426 [“It is not necessary to sue government

officers in their personal capacities to challenge the propriety of a government action”].)

Second, the civil conspiracy cause of action fails for varied reasons. It fails

against the board members because “California’s Government Claims Act [(Gov. Code,

§ 810 et seq.)] confers immunity from tort liability on public employees when they make

‘basic policy decisions’ in a legislative capacity.” (Freeny v. City of San Buenaventura

(2013) 216 Cal.App.4th 1333, 1337, citing Gov. Code, §§ 820.2, 821, 821.2; see Pacific

Tel. & Tel. Co. v. Public Utilities Commission (1965) 62 Cal.2d 634, 647 [“The fixing of

rates is a legislative act”].) In contrast, the general manager is not immune under the

Government Claims Act. (See Caldwell v. Montoya (1995) 10 Cal.4th 972, 981 [“no

basis” under Government Claims Act “for immunizing lower-level, or ‘ministerial,’

decisions that merely implement a basic policy already formulated”]). But the cause of

action fails against him, too, because the evidence offered does not meet Howard Jarvis’s

burden. The opposition to the anti-SLAPP showed only that Barrett stated that farmers in

the East Coachella Valley believed they were entitled to cheap water, that he doubted

there would be much support to raise water rates there just to accommodate a sense of

parity, and that the replenishment charge in the East Whitewater River Subbasin area

20 would rise to over $500 an acre-foot in five or six years if true replenishment costs for

that area were taken into account. None of these statements could reasonably be

interpreted to show he “‘“acted in concert [with other conspirators] and came to a mutual

understanding to accomplish a common and unlawful plan”’” (Spencer v. Mowat, supra,

46 Cal.App.5th at p. 1036).

The civil conspiracy cause of action fails as to the consultants because Civil Code

section 47, subdivision (b) provides absolute immunity for publications and statements

made in an “official proceeding authorized by law.” (See, e.g., Mission Oaks Ranch, Ltd.

v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 727 [privilege applies to

preparation of environmental impact report], disapproved on another ground in Briggs v.

Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10; Frisk v.

Merrihew (1974) 42 Cal.App.3d 319, 324 [privilege may apply to statements made in

school board meetings].) The privilege extends to those made before the proceeding “if

they have some logical connection to the suit and are made to achieve the objects of” the

proceeding. (Cayley v. Nunn (1987) 190 Cal.App.3d 300, 303-304.) The cost-of-service

study was prepared for the board meeting that set the replenishment charges, so it cannot

form the basis of tort liability, even derivatively. Although Howard Jarvis contends the

privilege cannot apply because the consultants never intended to provide truthful and

accurate information, “[m]otives, morals, ethics and intent are not elements of the

privilege.” (Mission Oaks Ranch, Ltd. v. County of Santa Barbara, supra, 65

Cal.App.4th at p. 727.)

21 Third, the aiding and abetting and UCL violation causes of action against the

consultants fail for the same reason articulated immediately above, which is that Civil

Code section 47, subdivision (b) makes the consultants “absolutely immune from tort

liability” (Rubin v. Green (1993) 4 Cal.4th 1187, 1193) for preparing the cost-of-service

study.

And finally, the declaratory relief cause of action fails against the anti-SLAPP

defendants because it seeks only a declaration that the replenishment charges are

unlawful. The anti-SLAPP defendants’ rights and duties are not implicated by such a

declaration. (Code Civ. Proc., § 1060.)

In sum, the anti-SLAPP motion should have been granted except as to the

conversion cause of action and the writ of mandate against the general manager. The trial

court’s award of fees against the anti-SLAPP defendants and their counsel for filing a

frivolous anti-SLAPP motion was therefore in error because the motion was largely

meritorious, rather than “‘totally and completely without merit.’” (Area 51 Productions,

Inc. v. City of Alameda, supra, 20 Cal.App.5th at p. 606.)

B. Demurrer

The third amended petition and complaint alleged causes of action mainly against 6 the Water District, which is not one of the parties Howard Jarvis dismissed. As against

6 The combined appellants’ reply brief and cross-respondents’ brief lists the Water District as a cross-respondent. But the Water District is not a party to the cross- appeal, as the judgment forming the basis of the cross-appeal dismissed the anti-SLAPP defendants but not the Water District. (See Tinsley v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 880 [“when there is a several judgment resolving all issues

22 the anti-SLAPP defendants, the third amended petition and complaint alleged a writ of

mandate cause of action against the board members and general manager, a UCL

violation cause of action against the consultants, and a declaratory relief cause of action

against the anti-SLAPP defendants. However, as discussed above, and with one

exception, each of these should have been dismissed as part of the anti-SLAPP motion.

Whether or not the trial court properly sustained the demurrer on the third amended

petition and complaint is therefore largely a moot question. “A court is tasked with the

duty ‘“to decide actual controversies by a judgment which can be carried into effect, and

not to give opinions upon moot questions or abstract propositions, or to declare principles

or rules of law which cannot affect the matter in issue in the case before it.”’ [Citation.]

A case becomes moot when events ‘“render[] it impossible for [a] court, if it should

decide the case in favor of plaintiff, to grant him any effect[ive] relief.”’” (In re D.P.

(2023) 14 Cal.5th 266, 276.) There can be no effective relief here, as even if we were to

agree with Howard Jarvis that the demurrer was sustained in error, the causes of action 7 alleged against the anti-SLAPP defendants would, with one exception, still be dismissed.

The sole exception is the writ of mandate cause of action against the general

manager, which we determined above did not arise from the general manager’s protected

between a plaintiff and one defendant, either party may appeal from an adverse judgment, although the action remains pending between the plaintiff and other defendants”], citing Code Civ. Proc., § 579.) 7 Howard Jarvis’s request for judicial notice, made in connection with the arguments it raises on cross-appeal, is denied as moot.

23 activity. Yet the demurrer was properly sustained as to this narrow portion. Just as we

stated above that no relief sought by the proposed writ would properly extend to cover

the individual board members, so too would such relief not properly extend to the general

manager. That cause of action therefore fails as to the general manager as a matter of 8 law.

8 Howard Jarvis has forfeited any argument concerning the order sustaining the demurrer to the first amended petition and complaint without leave to amend as to the conversion, aiding and abetting, and civil conspiracy causes of action. Its statement that the causes of action against the anti-SLAPP defendants “for their ongoing conspiracy should still stand” lacks any supporting argument. “‘“‘When an appellant [asserts a point] but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeited].”’ [Citation.] “We are not bound to develop appellants’ arguments for them.”’” (Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 521.)

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III. DISPOSITION

The order denying the anti-SLAPP motion and the order awarding attorney’s fees

and costs on the anti-SLAPP motion are reversed. The order sustaining the demurrer on

the second amended petition and complaint (which was deemed the basis for sustaining

the demurrer to the third amended petition and complaint) is affirmed. The anti-SLAPP

defendants are awarded their costs on appeal.

CERTIFIED FOR PUBLICATION

RAPHAEL

J.

We concur:

RAMIREZ

P. J.

McKINSTER J.

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